Friday, January 26, 2018

The House Subcommittee on Communications and Technology will hold
a hearing, “Closing the
Digital Divide: Broadband Infrastructure Solutions,” on January 30 to discuss a
raft of recently introduced bills and resolutions aimed at encouraging
broadband deployment. As reported in TR
Daily on January 23, these include H.Res. 687 (addressing federal, state,
and local taxes, fees, regulations, and permitting policies); H.Res. 689
(urging preference for prioritizing wireless infrastructure funding to states
that have enacted streamlined siting for small cells); H.Res. 690 (opposing
funding broadband overbuilds); H.Res. 691 (recommending that broadband
deployment be competitively and technologically neutral); and H.Res. 701
(recommending that environmental and historic studies required for broadband
deployment be limited to the area impacted).

As for the remainder, here is TR Daily’s bare-bones listing with the bill
numbers:

Aside from the use of the clever – even if sometimes awkward – acronym-dictating
bill naming protocols, it appears that most of these bills will, in fact, speed
broadband deployment by removing or reducing regulatory barriers and
facilitating planning processes. Several of them are targeted more specifically
at streamlining regulations or processes that otherwise would unnecessarily inhibit
deployment of 5G network infrastructure.

Subcommittee Chairman Marsha Blackburn and her committee
colleagues should be commended for getting off to a fast start this year in
their work to spur broadband infrastructure deployment, including measures
targeted to 5G. I haven’t studied all of the details of the bills that will be
discussed at the hearing. Nevertheless, it appears that many of them propose
common-sense measures that ought to warrant bipartisan support.

Of course, “net neutrality” is the proverbial elephant in the room
as congressional Democrats now prepare to attempt to use the Congressional
Review Act (CRA) to overturn the FCC’s December 2017 Restoring Internet Freedom order (notwithstanding the fact that
several of the leading proponents of this action, only recently, have advocated
repeal of the Congressional Review Act.)

Rather than using the CRA process in what almost certainly will be
an unsuccessful effort to overturn the Restoring
Internet Freedom order, opponents at least should attempt to work across
party lines to enact legislation that would resolve the decade-old net
neutrality controversy, if not for “all time,” then at least for the foreseeable
future.

For many years now, I have stated frequently that I am not fond of
a legislative resolution of the net neutrality controversy that writes into law
– in other words, that locks in – absolute bans on certain practices, even,
say, “throttling,” foreclosing any consideration of the existence or not of market
failure or consumer harm. This is especially true, for example, with regard to
so-called paid prioritization, where an absolute prohibition, in the absence of
consideration of evidence of market failure or consumer harm, seems
particularly short-sighted. In other words, in the fast-changing, dynamic
Internet environment, legislation that is framed in terms of targeting
practices that cause consumer harm or that constitute anticompetitive abuses,
examined by the expert agency in the context of current and projected market
conditions, is preferable over a law containing outright bans.

Be that as it may, consumers are not well-served for net
neutrality regulations to be akin to the proverbial ping-pong, with a change in
the rules accompanying each change in administration. Even as the Internet
services marketplace and the technology continue to evolve at a quick pace,
there certainly is value in stability of the rules of the road. Aside from the
need for the market participants to have a predictable, stable legal regime, which
facilitates investment and innovation, far too many resources are consumed non-productively
by opposing parties contesting regulations subject to administrative ping-pong.
To my mind, Chairman Blackburn’s “Open Internet Preservation
Act” represents a good starting part for discussing a compromise net
neutrality bill.

In the meantime, and in the near term, the cause of advancing
broadband infrastructure deployment, including deployment of game-changing 5G
networks, ought to be one on which bipartisan consensus can be reached.
Tuesday’s hearing is a welcome step in the right direction.

* *
*

PS – Note immediately above that I said “in the near term.” I
remain convinced that, if not this year, then in the not-too-distant future a
comprehensive overhaul of the Communications Act is needed. Back in 2014, the
House Commerce Committee initiated what it called a #CommActUpdate process to
begin examining what a modernized law – one fit for the Digital Age – should
look like. Amidst the heat of the net neutrality controversy that overhaul
effort has stalled. But for the full potential of the digital revolution to be
realized in a way that enhances overall consumer welfare, and the nation’s
social and economic well-being, there will need to be a #CommActUpdate that
requires evidence of market failure and consumer harm before regulatory
sanctions are imposed.

With that in mind, for those who are willing, or even anxious, to
“think ahead,” I commend to you the book recently published by the Free State
Foundation titled, #CommActUpdate
– A Communications Act Fit for the Digital Age.In addition to a Preface and a lengthy, substantive Introduction containing
much detailed background information, this new book reproduces all six
Responses to the House Commerce Committee’s White Papers prepared by a
distinguished group of Free State Foundation-affiliated scholars. I’m
convinced, and I think you may be as well, that the book’s recommendations are
instructive in pointing the way forward as the digital revolution continues to
produce more competition and more convergence in the communications marketplace.